Citation Nr: 21024502 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-28 308A DATE: April 22, 2021 ORDER Prior to November 4, 2020, an extra-schedular total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Prior to November 4, 2020, the Veteran was unemployable due to his service-connected anxiety disorder. CONCLUSION OF LAW The criteria for an extraschedular TDIU prior to November 4, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1974 to March 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously remanded this appeal in October 2019, April 2020, and February 2021 for further development. The case returned to the Board for further appellate review. 1. Entitlement to an extra-schedular total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) prior to November 4, 2020 The Veteran contends that he stopped working due at least in part to his service-connected anxiety disorder. See the May 2017 and November 2020 VA examination reports. In a November 2020 rating decision, the Veteran was granted entitlement to a TDIU effective November 4, 2020. The Board, in a February 2021 decision, remanded the issue of entitlement to a TDIU for the period of appeal prior to November 4, 2020, for further development. The Board finds substantial compliance with the February 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran filed a completed VA Form 21-8940 in January 2017. The appealed issue was last adjudicated by a February 2021 SSOC. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran’s sole service-connected disability is anxiety disorder rated at 50 percent disabling from January 19, 2017 to November 4, 2020. As such, the Veteran does not meet the requirements for a TDIU prior to November 4, 2020. Where the TDIU schedular percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, supra. Here, however, the Veteran's claim was already referred for consideration of an extraschedular rating by the Director, Compensation Service (Director). In February 2021, the Director issued an advisory opinion finding that prior to November 4, 2020 an extraschedular rating was not warranted. The Board is not bound by this decision and will conduct its own de novo analysis. Ray v. Wilkie, 31 Vet. App. 58, 63 (2019) (citing Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). The grant of an extra-schedular rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). As such, before the Board can refer a TDIU claim to the Director of C&P Service for an extra-schedular evaluation, the Board must determine that a veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. Therefore, the ultimate question for the Board is whether a claimant is capable of performing the physical and mental acts required by employment; not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. VA shall consider all information lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From the records available on file, the Board notes that the Veteran completed three years of college and no additional education or training. The Veteran has worked as handyman/maintenance from 2006 to 2013. He noted that he last worked full time in October 1997 and became too disabled to work in October 2016. See December 2016 VA 21-8940. He has also worked cleaning houses, painting and doing yard work. See May 2017 statement. After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected anxiety disorder have precluded him from obtaining and maintaining substantially gainful employment prior to November 4, 2020. VA treatment records show that in September 2015, the Veteran reported not having a steady employment in over seven years and that he does odd jobs here and there to get by. In a May 2017 VA examination, the Veteran reported that he had worked at a tire store but felt over-worked by his manager. He also reported that one day, he drove a tow truck towards his manager with plans to run him over but swerved at the last second. Afterwards, he worked different jobs either driving or manual labor. “I could never keep a job” due to conflicts with supervisors and others. He would take sick days and drink. The examiner concluded that the Veteran’s symptoms caused occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships. The Veteran testified in the July 2019 Board hearing that he had not been able to hold a job for longer than two years since he separated from service. At a previous job at a factory, he had problems with his supervisor and a coworker. The Veteran had a VA mental disorders examination in March 2020. The Veteran indicated he spent most of his time at home and doing mechanic work, was unemployed, and was able to drive and engage independently in activities of daily living. He worked at a factory and worked in seasonal construction, for a couple of years, in roofing, house painting, and flooring. He last worked full time in 1997/1998. The examiner concluded that the Veteran’s symptoms caused occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. He was capable of managing his financial affairs. The Board acknowledge that both VA examiners concluded that the Veteran’s anxiety disorder caused occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication; however, the May 2017 examiner noted symptoms that would interfere with work including disturbances of motivation and mood, irritable behavior and angry outbursts, anxiety, depression and difficulty establishing and maintaining effective work and social relationships. Both examiners noted symptoms that would interfere with work including depressed mood, anxiety and disturbances of motivation and mood. Based on above, the evidence is at least in equipoise as to whether the Veteran's service-connected anxiety disorder render him unable to obtain and maintain substantially gainful employment. Considering statements from the Veteran, as well as the VA examination reports, and other VA treatment records, the Board finds that the Veteran's service-connected disability render him unable to maintain substantially gainful employment, regardless of occupation, from January 2017; thus, the Board finds that TDIU is warranted under 38 C.F.R. § 4.16 (a) from January 2017. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.